Telecommunications Carrier Assess Study
Di:;~~E
~<k~
MEMORANDUM
August 26, 2006
TO:
The Honorable Mayor and City Council Members
FROM:
Michael C. Van Milligen, City Manager
SUBJECT: Telecommunications Carrier Assessment Study
On July 14, 2006, the City issued a Request for Proposals for a Telecommunications
Carrier Assessment and Study. RSM McGladrey submitted the only response to the
Request for Proposals.
Based on RSM McGladrey's leadership in similar projects, the ability of the personnel
available to work on this project and their ability to fulfill the needs of the City of
Dubuque for this project, Information Services Manager Chris Kohlmann recommends
City Council approval of the hiring of RSM McGladrey for $9,000 to complete the
Telecommunications Carrier Assessment Study.
Dubuque County is also participating in this project, so the $9,000 cost will be split
equally between the City of Dubuque and the County of Dubuque.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
Ai~A!l
Michael C. Van Milligen '--
MCVM/jh
Attachment
cc: Barry Lindahl, City Attorney
Cindy Steinhauser, Assistant City Manager
Chris Kohlmann, Information Services Manager
, '
.,\.,)
THE CITY OF
DUB E
~~~
MEMORANDUM
Date: August 25, 2006
Tot Met_I C.Van MiIigen, City Manager
cc: Cindy Steinhauser, Assistant City Manager
Juanita Hilkin, Office Manager CMO
Dawn Lang, Budget Officer
Ken Tekippe, Finance Director
From: Chris Kohlmann, IS Manager
RE: Telecommunications Carrier Assessment Study
BACKGROUND
On July 14, 2006 the City issued an RFP for a "Telecommunications Carrier
Assessment and Study." The specific scope of the work to be accomplished by a
consultant for this project would be:
. Educate the RFP Committee on an overview of the current state of the
telecommunications industry. This overview would include the options
offered for local and long distance service in Dubuque. The education would
also include some time on terminology.
. Audit of current communications charges for local and long distance
. Creation of an RFP for local and long distance service.
. Facilitate the vendor presentations for those responding to the RFP.
. Assist the RFP committee in evaluation of the RFP responses to insure an
"apples to apples" comparison.
08/2512006
A copy of the RFP was sent to all of the accounting firms that we had submitted the
audit RFP to which included Eide Bailly, Honkamp Krueger, RSM McGladrey and
O'Connor Brooks. All of these firms have a local Dubuque Office. The RFP was
also posted on the City website. The County was invited to participate in the study
and the scope of the project reflected this potential partnership.
DISCUSSION
Dale Leibfried, a partner with Honkamp Krueger, contacted Ken Tekippe and stated
that they appreciated receiving the telecommunications RFP but will not be
submitting a proposal since they don't have the expertise in the area. RSM
McGladrey returned a completed proposal. No other firms contacted the City nor
submitted a proposal. I have attached a copy of the proposal submitted by RSM
McGladrey.
I had asked Cindy Steinhauser, Assistant City Manager ;Juanita Hilkin, Office Manager
CMO; Dawn Lang, Budget Director, and Ken Tekippe, Finance Director to review the
RSM McGladrey proposal and submit any comments or questions to me by noon,
Friday August 4.
There was one question raised conceming one of the staff from McGladrey having
had previous work experience with Qwest. I asked if the individual was still
employed or associated with Qwest, his response was no. It is also not uncommon
to have consultants working in this field to have prior experience with one of the
major telecommunications carriers. There was also some question on the
insurance and this was researched by Ken Tekippe with the assistance of ICAP
representative Frank O'Connor. There appears to be no issue with meeting the
insurance requirements.
I spoke with Rob Henry the CIO for the City of Davenport as a reference for RSM
McGladrey. Their project involved the assessment of their current telephone billing
and services. Rob was fine with the quality of the work completed by RSM
McGladrey. The most major challenge of the project was an incomplete definition
of the project scope and the scope tended to become larger as the project
progressed. Rob took part of the responsibility for this problem. The RSM
McGladrey project team stuck with the assessment and overall he is happy with the
product.
RECCOMENDATION
Based on RSM McGladrey's leadership in similar projects, the ability of the
personnel available to work on this project and their ability to fulfill the needs of the
City of Dubuque for this project, I would therefore recommend that we proceed with
their proposal.
08/28/2006
2
BUDGET IMPACT
RSM McGladrey has proposed to complete this project for $9000. I contacted
County Auditor Denise Dolan inviting the County to participate in this assessment.
Denise has indicated that she's included $4500 in an amendment to the budget she
is preparing toward the consultant fees for this project. Therefore the City would
expend $4500 for this project.
The funding source for this project would be from the funds available from the FY06
budget for telephone which were roughly $16,000 and requested to be carried over
to the FY 07 budget.
ACTION STEP
I would ask that you review the information submitted and let me know of any
questions. I would ask for your approval to proceed with the project.
08/28/2006
3
pi
fill
fill
RSM McGladrey
City of Dubuque
Telecommunications Carrier and Assessment Study
RFP Response
July 27, 2006
.
I
I
.
.
.
.
I
.
.
.
.
.
.
..
..
..
M
RSM McGladrey
RSM McGladrey Ine.
Town Centre, Suite 300
221 Third Avenue SE
Cedar Rapids.IA 51401-1511
0319.198.5333 F 319.366.8970
www.rsmmcglaclrey.com
July 27, 2006
Ms. Chris Kohlmann, Information Services Manager
City of Dubuque
1300 Main
Dubuque, IA 52001
Dear Chris:
RSM McGladrey Inc. (RSM McGladrey) is proud to respond to City of Dubuque's request for proposal for a
telecommunications carrier and assessment study with the attached proposal. The phases and relatSd tasks
approved and documented in this proposal include only those involving RSM McGladrey.
RSM McGladrey is highly qualified to provide the quality and scope of services that you need to accomplish your
goals. Our Firm operates over 100 offices nationwide and offers a wide range of professional services to many
types of clients. In our Iowa offioes, we employ over 65 information technology specialists who are dedicated to
RSM McGladrey clients throughout the stale.
Our size, depth of resources, and indusby expertise are substantial, but tt is not these factors that set us apart from
other firms. Rather, it is the commttment to deploy our resources and experience on behalf of City of Dubuque.
Simply put, your organization will be an important client and, accordingly, will receive the priority service they
deserve.
Please contact Mike Mulnix at 319.298.5306 or Ron Beck at 319.298.5323 if you have any questions, and we look
forward to working with you on this project.
Sincerely,
RSM McGladrey Inc.
--
~~
~~;t.~}
Mike Mulnix
Senior Associate
Ron Beck
Director
RSM McGladrey Inc. is a member firm of RSM International -
an affiliation of separate and independenllegal entities.
Executive Summary
The City of Dubuque has asked RSM McGladrey to provide a Request For Proposal (RFP)
response to assist with selecting a local/long distance telephone service provider and an
assessment of current services.
Listed below are the RSM McGladrey responses In the order requested by the City of
Dubuque.
Project Schedule
Vendors should supply a project schedule assuming an August 14, 2006, project
start date.
RSM McGladrey shall perform the following -
.
.
.
.
.
.
.
.
..
.
I
Technology Update to RFP Committee
August18,2006
Service Discovery Phase
Communication Audit
(Review T elecorn biffs for actual needed services and redundancy)
September 1, 2006
Request For Proposal (RFP)
Write RFP and distribute to applicable carriers
September 8, 2006
Carrier Discovery and Information
Carrie~s) presentation of solution and proposal
October 9 - 13, 2006
Proposal
Review Proposals
Proposal Review Presentation to RFP Committee
October 23 - 27, 2006
1
July 27, 2006
I
,
I
I
i.
.
.
Profile of the Firm
1. Company Name
RSM McGladrey Inc.
2. Legal Name (if different)
N/A
3. Years in Business
80 years (since 1926)
4. Number of years performing work similar in scope to this proposal
RSM McGladrey gained its Telecommunications Consulting practice in October
2005.
5. Contact Person or Main Project Manager
Mr. Mike Mulnix
6. Full Mailing Address
RSM McGladrey Inc.
221 Third Avenue SE, Suite 300
Cedar Rapids,lA 52401.1512
7. Telephone Number
319.298.5306
8. FAX Number
319.366.6118
9. E-mail and web site address
mike.mulnix@rsmi.com
rsmmcgladrey.com
10. Number of full-time employees
4,498. RSM McGladrey Inc.
2,628. McGladrey & Pullen
2
July 27, 2006
11. Resumes of personnel working on the project
Mike Mulnix
Supervisor, Information Technology Consulting
0319.298.5343
F 319.366.6118
mike.mulnix@rsmLcom
Summary of Experience
Mike Mulnix is a Telecommunications Supervisor with the Information Technology Solutions Group in the
Cedar Rapids, Iowa, office of RSM McGladrey Inc. Prior to joining RSM McGladrey in 2006, Mike was Vice
President of Sales for Evolving Solutions. Evolving Solutions is a national reseller or agent for Owest, AT&T,
Verizon, Bell South, MCI, Sprint, and more. While at Evolving Solutions, Mike assisted business partners
with voice, data, and Intemet solutions. Mike has experience in the carrier solutions plus voice and data
networks that makes him uniquely qualified to plan business solutions for trad~ional voice, Voice over IP,
Internet access, and local and wide area networks.
Regional Channel Manager - MCI, Inc.
Manager of MCl's Solutions Providers program for Iowa, North Dakota, and South Dakota. Assisted
MCI business solution providers on Private IP, MPLS, VolP, Dedicated Intemet, and other cutting~ge
solutions.
Senior Account Executive - Quest Corporation
Met with business owners to provide awest spirit of service. Consulted with business owners to provide
awest solutions for local service, long distance, and Intemet and network connectiv~. ,
Account Manager - Communication Engineering Company
Account manager for six years in govemment accounts in all technologies. Technologies included
traditional and IP voice systems, Cisco, Nortel, Extreme and other data equipment, video conferencing,
CCTV, CATV, audio sound systems, door access systems, RF Motorola systems, Microwave and laser
point-to-point systems, and peripherals of these systems.
Professional Affiliations
. MCI Solutions provider certified
. awest Spirit of Service SAE
. BICSi Level II Technician.
Community Involvement
. North Linn Wrestling Club coach - K-8th grade for 12 years
. Walker Little League Baseball coach - 5th and 6th grade
. Member of Walker Lions Club
Education
Public Relations, University of Northem Iowa 1986
3
July 27. 2006
Signature
The undersigned certifies he/she is authorized to obligate the represented firm
and further agrees with all terms, conditions, and requirements of the City of
Dubuque's Request for Proposal.
Phone
RSM McGladrey Inc.
221 Third Avenue SE, Suite 300
Cedar Rapids, IA 52401.1512
319.298.5333
Firm Name
Address
Signature
Title
~
~~
Senior Associate - Telecommunications Consulting Group
Date
July 20, 2006
Contract Addenda Received (if any)
References
To be a qualified Proposer, the vendor must include below three references with
similar work completed. Preference will be given to vendors with references for
implementations at organizations most similar to the City of Dubuque.
References will be contacted - please verify information before submitting.
Reference #1
Organization Name
Address
City of Davenport
226 West Fourth Street
Davenport, IA 52801
Type of Business City Government
Contact Person Rob Henry. CIO
Telephone and Fax #s 563.326.7791 FAX: 319.360.3705
Secondary Contact Person
Secondary Contact phone and Fax #s
Dates of Installation NA
Description of project NA
4
July 27, 2006
Reference #2
Organization Name
Address
Paladin Brands
5825 Council Street NE
Cedar Rapids, IA 52402-5827
Type of Business Manufacturer I distributor of construction products
Contact Person John McCrickard - IT Director
Telephone and Fax #'s 319.378.3696
Secondary Contact Person
Secondary Contact phone and Fax #s
Dates of Installation Nov 2004 and July 2005
Description of project IT infrastructure implementation
Reference #3
Organization Name
Address
Welsh Machinery
500 Tower Terrace Road
Cedar Rapids, IA 52411
Type of Business Industrial machinery and equipment
Contact Person Vince Welsh
Telephone and Fax #'s 319.377.0195 FAX: 319.377.3035
Secondary Contact Person
Secondary Contact phone and Fax #s
Dates of Installation April 2004 and September 2005
Description of project Outlook Web Access
Telecom Infrastructure Assessment and Design
Costs
Include a summary of all costs associated with the project.
RSM McGladrey will perform this project on a time and material basis with a not to exceed
amount of $9,000.
Travel expenses and other out-of.pocket expenses are billed at actual cost and are in
addition to the above fees.
5
July 27, 2006
Exceptions. The vendor should list any exceptions taken with items or terms
required in this proposal.
Insurance
All a national business services firm, RSM McGladrey Internally manages its professional
liability risk containment program to address its needs on a current basis. The system is
carefully monitored by Firm management and Is based on a blend of self.lnsured risk
retention and externally purchased professional liability insurance coverage. However, for
various reasons, these respective amounts are not made public.
6
July 27, 2006
I
RSM McGladrey's Engagement Assumptions and Client's Responsibilities
Services and Scope of Work
The scope of work is defined In the previous RFP response. In the event that other work is
requested or identified by the joint project team that is outside of the tasks identified, we
will immediately inform you before any work is performed and provide estimated costs to
complete the additional tasks. It is our Intention to focus only on the tasks Identified, in
order to complete the project in a timely manner, and to delay any future tasks that may be
Identified to a future period.
Client Acceptance of Work
At the conclusion of each phase of work (if applicable), we will review with you the intended
scope of work and deliverables set out in this document to confirm we have met the defined
project expectations. If you believe the dellverables do not conform, you will notify us in
writing within ten business days of delivery of the deliverables that the deliverables do not
conform. We will then have a reasonable period of time, based upon its severity and
complexity, to correct the non-conformity. If you use the dellverables before acceptance, or
if you fail to notify us of the non-conformance within the ten.day period, then the
dellverables will be considered accepted.
Our personnel shall observe client's confidentiality, code of conduct, or other reasonable
policies regarding working conditions and business hours to the extent our personnel are
made aware of such policies. RSM McGladrey's responsibility for the refusal of any
personnel to observe such policies shall be RSM McGladrey's attempt to furnish client with
replacement personnel. If for any reason, any of our personnel is unable to complete the
service period or his/her performance does not meet client's expectations, RSM McGladrey
will attempt to provide a suitable replacement.
Engagement Assumptions and Client's Responsibilities
Our services, fees, and work schedule are based upon the assumptions, representations,
and information supplied by you as listed in this proposal.
The project team is a key component of any successful project. The team consists of an
overall project manager from RSM McGladrey who will communicate directly with your
assigned internal project manager and management team. We will involve your key people
and staff and will communicate updates and progress on the work as performed. In order to
facilitate this active communication, we assume that you will fulfill the following
responsibilities:
, Make all management decisions and perform all management functions.
, Designate a competent employee, preferably with senior management, to oversee our
services.
, Establish and maintain internal controls, including monitoring ongoing activities.
, Evaluate the adequacy and results of the services performed and provide us feedback.
7
July 27, 2006
r Accept responsibility for the results of the services upon completion to your
satisfaction.
It is our intention to ensure that all key management functions and oversight are provided
by the client, so that any systems put in place can be adequately managed in the future
without total reliance on any vendor.
To the extent our services or deliverables include the design or Implementation of hardware
or software systems, you agree to be responsible for making all management decisions
including, but not limited to, decisions concerning systems to be evaluated and selected,
the design ofthose systems, controls, security, and system procedures to be implemented,
and the scope and timetable of the implementation, testing, training, and conversion plan.
City of Dubuque will determine the extent of services they wish RSM McGladrey to provide
and ensure our Firm has access to key people and data.
If circumstances arise relating to the availability of sufficient, competent evidence or
Information which, in our professional judgment, prevents us from completing the
engagement, we retain the unilateral right to take any course of action permitted to us,
including withdrawal from the engagement.
In the event we are requested or authorized by City of Dubuque or are required by
government regulation, subpoena, or other legal process to produce our documents or our
personnel as witnesses with respect to our engagements for City of Dubuque, City of
Dubuque will, so long as we are not a party to the proceeding in which the information is
sought, reimburse us for our professional time and expenses, as well as the fees and
expenses of our counsel, incurred in responding to such requests.
You also will let us know immediately of any problems or issues you perceive in our
personnel or services. We will also let you know where we feel we are not receiving the
appropriate cooperation or direction and advise you of any other issues related to this
engagement. The success of our engagement is dependent upon full openness,
communication, cooperation, and timely direction. The fulfillment of these responsibilities
is critical to the success of our engagement.
8
July 27. 2008
If
If
If
I
..
..
..
,.
.
.
.
.
.
.
.
.
.
.
.
Agreement and Acceptance
The attached General Business Terms apply to this engagement and are an integral part of
our agreement. Please indicate your agreement to these arrangements by signing and
returning the enclosed copy of this proposal.
We would like to emphasize our experience in conducting these types of assessments and
In the analysis of networks and systems very similar to the ones that exist at the City of
Dubuque. We appreciate the opportunity to be of service to you and look forward to working
with you on this project. You will receive our closest attention. If at any time you have
questions, concerns, or issues with our services, please contact Mike Mulnix at
319.298.5306 or Ron Beck at 319.298.5323.
This Engagement Contract and the attached General Business Terms correctly sets forth
our understanding and acceptance of this agreement.
r ProJXlsal for T eiecommunicalions Carrier and Assessment Study Services.
. Proposed Fee = Not to Exceed $9,000.
Acknowledged and Accepted by:
CITY OF DUBUQUE
Signature
Printed Name
Title
Date
If returning signed and accepted proposal via maR or fax, please mail! fax entire proposal to:
RSM McGladrey Inc.
Attn: Laurie Montgomery
221 Third Avenue SE, Suite 300
Cedar Rapids, IA 52401
FAX: 319.366.6970
9
July 27. 2006
EXHIBIT A
General Business Terms
10
July 27, 2006
Attachment to RSM McGladrey Inc. Engagement Contract
with City of Dubuque
RSM McGladrey Inc.
GENERAL BUSINESS TERMS
1. Our Services We will provide the services and
furnish the deliverables as described in our
Engagement Contract and any attachments
thereto, as may be modified from time to time by
mutual written consent.
2. IndeDendent Contractor We are an
independent contractor and not your employee,
agent, joint venturer or partner, and will
determine the method, details and means of
performing our services. We assume full and sole
responsibility for the payment of all compensation
and expenses of our employees and for all of
their state and federal income tax, unemployment
insurance, Social Security and other applicable
employee withholdings.
3. Confidentlalltv With respect to any
information supplied in connection with this
engagement and designated by either of us as
confidential, or which the other should
reasonably believe is confidential based on its
subject matter or the circumstances of its
disclosure, the other agrees to protect the
confidential information in a reasonable and
appropriate manner, and use confidential
information only to perform its obligations under
this engagement and for no other purpose. This
will not apply to information which is: (i) publicly
known, (ii) already known to the recipient, (iii)
lawfully disclosed by a third party,
(iv) independently developed, (v) disclosed
pursuant to legal requirement or order, or (vi)
disclosed on a need-to-know basis to our
respective independent contractors, agents and
affiliates who agree to maintain its confidential
nature. We may also mention your name and
provide a general description of the engagement
in our client lists or marKeting materials. We or
our direct affiliates may send marKeting or
advertising material to you.
4. Our Deliverables and Your License Upon full
payment of all amounts due us in connection with
I
I
[
[
'!II
this engagement, all right, title and interest in the
deliverables set out in our Proposal will become
your sole and exclusive property, except as set
forth below. Our worK papers will not constitute
worK product and will remain our sole and
exclusive property. We will retain sole and
exclusive ownership of all right, title and interest
in our worK papers, proprietary information,
processes, methodologies, know how and
software, including such information as existed
prior to the delivery of our services and, to the
extent such information is of general application,
anything which we may discover, create or
develop during our provision of services for you.
Except for software owned by and/or proprietary
to us, to the extent our deliverables to you
contain our proprietary information, we grant you
a non-exclusive, non-assignable, non-
transferable, royalty-free license to use such
information in connection with the deliverables
and the subject of the engagement and for no
other or further use without our express, prior
written consent. To the extent our deliverables
contain our software, a separate license
agreement is required. To the extent our
deliverables to you contain the proprietary
information of a third party, you agree to comply
with such third party's terms of license. All
licenses to software (including any
enhancements to software) will be licenses to
object code only.
5. Your ResDonsibilltles You agree to furnish
personnel, facilities and resources, and
undertake certain responsibilities in connection
with our engagement. You also agree to cause
all levels of your employees and contractors to
cooperate fully and timely with us. You will
designate an employee or employees within your
senior management who will make or obtain all
management decisions with respect to this
engagement on a timely basis. You also agree
that all assumptions set forth in the Engagement
Contract are accurate and agree to provide us
11
July 27, 2006
II
II
II
II
..
II
II
.
.
.
.
..
..
.
.
.
.
.
..
with such further information we may need and
which we can rely on to be accurate and
complete. We will be entitied to rely on all of your
decisions and approvals made independenUy
and we will not be obligated to evaluate, advise
on, confirm, or reject such decision and
approvals.
You will evaluate the adequacy and results of
services and will let us know immediately of any
problems or issues you perceive in our services
or deliverables at any time. We will also let you
know where we feel we are not getting the
appropriate cooperation and advise you of any
other issues related to our engagement The
success of our engagement is dependent upon
full openness, communications and cooperation.
The fulfillment of these responsibilities is critical
to the success of our engagement
The successful delivery of our services, and the
fees charged, are also dependent on your timely
and effective completion of your responsibilities,
the accuracy and completeness of the
assumptions, and timely decisions and approvals
by your management You will be responsible for
any delays, additional costs, or other liabilities
caused by or associated with any deficiencies in
the assumptions or in carrying out your
responsibilities.
6. Software Responsibilities If applicable to this
engagement, you must be registered with the
software manufacturer as our customer and be
enrolled in their enhancement plan to ensure
your software remains current and to qualify for
our Help Desk Support Plan. You also agree to
maintain a current software license in compliance
with all manufacturers' license requirements at all
times during the term of this engagement It will
also be your responsibility to ensure complete
system backups are completed and tested
regularty to ensure operability in the event of a
server malfunction or a loss of data. You
acknowledge that server malfunctions (e.g. a
hard drive failure) or other action that may cause
loss of data may occur at any time. You also
acknowledge that you have reviewed the
software product and/or specifications and agree
the software applications and specifications are
fit for and complete to your satisfaction for your
business purpose.
We will respond to your request for support
during normal business hours on our Help Desk
Support telephone line. If we determine, in our
sole discretion, that an on-site vistt is necessary,
then we will schedule a consultant to arrive at
your site as soon as practicable based on the
severity of the problem and your location.
7. Fees. ExDenses You acknowledge that any
fee estimates we have furnished are only our
good faith estimates based on our understanding
of the engagement assumptions and the facts
and circumstances we are aware of at this time.
If the bases of our estimates are inaccurate, the
fees and expenses may be different from those
we each anticipate.
We will bill our fees and expenses twice a month.
Those fees and expenses do not include .taxes.
You will be responsible for and pay all applicable
sales, use, excise, value added and other taxes
associated with the provision or receipt of the
services and deliverables, excluding taxes on our
income generally. Our invoices are payable upon
presentation and amounts remaining overdue for
more than thirty days will be subject to an interest
charge of 1.5% per month from the date of
invoice. We reserve the right to suspend or
terminate services if our invoices are not timely
paid, in which event we will not be liable for any
resulting loss, damage or expense connected
with such suspension or termination.
8. Our Warrantv We warrant that our services
will be performed with reasonable care in a
diligent and competent manner. Our sole
obligation will be to correct any non-conformance
with this warranty, provided that you give us
written notice within ten days after the services
are performed or, if applicable, deliverables are
delivered. The notice will specify and detail the
non-conformance and we will have a reasonable
amount of time, based on tts severity and
complexity, to correct the non-conformance. We
do not warrant and are not responsible for any
third party products or services. Your sole and
exclusive rights and remedies with respect to any
third-party products or services are against the
third-party vendor and not against us.
12 July 27. 2006
I
I
iii
.
.
I
.
.
.
.
.
.
.
.
.
.
..
..
..
THIS WARRANTY IS OUR ONLY WARRANTY
CONCERNING THE SERVICES AND ANY
DELIVERABLE, AND IS MADE EXPRESSLY IN
LIEU OF ALL OTHER WARRANTIES AND
REPRESENTATIONS, EXPRESS OR IMPLIED,
INCLUDING ANY IMPLIED WARRANTIES OF
MERCHANTABILITY, OR FITNESS FOR A
PARTICULAR PURPOSE, OR OTHERWISE,
ALL OF WHICH ARE HEREBY DISCLAIMED.
9. Indemnification of You We will, to the extent
allowable by law, indemnify you, your owners,
employees, contractors and agents against all
costs, fees, expenses, damages and liabilities
(including reasonable attomeys' fees and costs)
relating to any third-party claim of intellectual
property infringement, bodily injury or death of
any person, or damage to real or tangible
personal property incurred while we are
perfonning the services to the extent caused by
the negligent or willful acts or omissions of our
employees, contractors or agents in perfonning
the services, as finally adjudicated by a court of
law.
10. Indemnification of Us You will, to the extent
allowable by law, indemnify us, our owners,
employees, contractors and agents against all
costs, fees, expenses, damages and liabilities
(including reasonable attomeys' fees and costs)
associated with any third party claim relating to or
arising as a result of the services or your use of
the deliverables or our engagement except to the
extent the liability was caused by the negligent or
willful acts or omissions of our employees,
contractors or agents in perfonning the services,
as finally adjudicated by a court of law.
11. L1abilitv (a) Neither of us will be liable for any
delays or failures in perfonnance due to
circumstances beyond our reasonable control.
(b) Our total liability relating to this engagement
will in no event exceed an amount equal to the
fees we receive from you for the portion of the
engagement giving rise to liability, and will not
include any special, consequential, incidental,
punitive or exemplary damages or loss (nor any
loss of profits, savings, data, use of software or
hardware or business opportunity, or interruption
of business) even if we have been advised of the
possibility of such loss.
(c) If our engagement involves security-related
services, you acknowledge that no security
assessment can ever provide total assurance
against potential security intrusions. The
effectiveness of controls and security measures
is subject to inherent limitations and all errors or
problems may not be detected. Assessment
results are subject to the risk that changes are
made to your systems or controls, changes are
made in processing requirements, changes are
required because of the passage of time, or new
technology is developed. We are not responsible
for any lack of specific controls, breach of
security or other errors or fraud related to any
part of your systems that are not specifically
examined and for any period of time other than
the time period covered by our assessment.
12. Non-Solicitation During the tenn of this
engagement, and for a period of one year
following its expiration or tennination, you will not
actively solicit, employ, or otherwise engage any
of our employees (including former employees)
who were involved in the engagement. In the
event you breach this provision, you agree to pay
to us within thirty (30) days after demand, an
amount equal to the greater of $50,000 or 100
percent (100%) of the annual base salary of any
such employee of ours.
13. Termination (a) You may tenninate our
engagement for convenience at any time on
15 days' written notice.
(b) We may tenninate or suspend this
engagement it, within fifteen days' notice, you fail
to cure a material breach of our engagement
tenns or immediately without notice in the event
of non-payment of amounts due us.
(c) You will pay us for all services rendered,
including deliverables and products delivered,
expenses incurred or commitments made by us
to the effective date of tennination, and all
reasonable costs associated with any tennination
or suspension.
14. General (a) These General Business Tenns,
together with the Engagement Contract, including
13 July 27, 2006
all of its attachments, amendments or mutually
agreed upon scope changes. constitute the entire
understanding and agreement between us with
respect to the services and deliverables
described in the Engagement Contract.
supersede all prior oral and written
communications between us. and may be
amended. modified or changed only in writing
when signed by both parties. If there is a conflict
between these General Business T enns and the
tenns of the Engagement Contract, these
General Business Tenns will govem.
(b) No tenn of this agreement will be deemed
waived, and no breach of this agreement
excused. unless the waiver or consent is in
writing signed by the party granting such waiver
or consent.
(c) Neither of us may assign this agreement
without the other's consent.
(d) We may. from time to time, refer you to third
party vendors for specifIC materials or services.
These vendors are not our subcontractors. and it
is your responsibility to select and negotiate all
work and fees with them. We will assist you with
product selection. developing delivery schedules
and reviewing Engagement Contracts, as you
request and as described in the Engagement
Contract.
(e) We, in our sole discretion, may from time to
time use subcontractors to deliver specific
products or services to you. The management of
and all financial arrangements with
subcontractors will be our responsibility.
(I) The tenns of this agreement which by their
nature are to survive this agreement will survive
its expiration or tennination.
(g) We each acknowledge that we may
correspond or convey documentation via Intemet
e-mail and that neither party has control over the
perfonnance, reliability, availability, or security of
Intemet e-mail. Therefore. neither of us will be
liable for any loss, damage, expense. hann or
inconvenience resulting from the loss. delay,
interception. corruption. or alteration of any
Intemet e-mail due to any reason beyond our
reasonable control.
(h) We each agree that any dispute or claim
arising out of or relating to this agreement or the
services will be govemed by and construed in
accordance with the laws of the State of
Minnesota without regard to its laws of conflicts.
If we bring suit against you, we will do so in your
state. If you sue us, you will do so in Minneapolis,
Minnesota. We both agree to this choice of law,
jurisdiction, and venue. Additionally, we each
waive trial by jury and agree that any dispute or
claim should be resolved by a judge without a
jury.
(i) Any action against either of us by the other in
connection with this engagement must be
brought within eighteen months after the cause of
action arises.
. . .
14
July 27. 2006